Citation Nr: 0425965
Decision Date: 09/20/04 Archive Date: 09/29/04
DOCKET NO. 99-08 521 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and R.B., his former wife
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on active duty from March 1968 to March
1970. His appeal comes before the Board of Veterans' Appeals
(Board) from March 1998 and December 1998 rating decisions of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Wichita, Kansas.
This case was previously Remanded by the Board in October
2000 for additional development of the evidence. That
development having been completed, the case is once more
before the Board for appellate consideration.
FINDINGS OF FACT
1. During service, the veteran did not engage in combat with
the enemy.
2. There is credible supporting evidence of an inservice
stressor upon which to base the diagnosis of PTSD.
CONCLUSION OF LAW
PTSD was incurred in active service. 38 U.S.C.A. §§ 1110,
5107(West 2002);
38 C.F.R. §§ 3.303, 3.304 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran's service records and 201 file essentially show
that his military occupational specialties included combat
engineer. He served in Vietnam from August 1968 to August
1969. He participated in the Vietnam Counter Offensive Phase
V Campaign.
The veteran's service medical records are silent for PTSD.
He was noted to have complained of nervous trouble for the
first time on examination in February 1970, for separation
from active duty. A psychiatric evaluation was normal at
that time.
In October 1997, the veteran essentially filed an original
application of service connection for PTSD.
VA mental health clinical records dated in late 1997 show
that the veteran complained of nervous symptoms due to
stressful events in Vietnam. He reported that in Vietnam, he
was a combat engineer. He noted that his duties included
minesweeping, security patrols, village sweeps and
participating in relief forces for ambushed veteran's. PTSD
was diagnosed.
A February 1998 VA psychiatric examination report shows that
the veteran noted that while in Vietnam he was a combat
engineer and assigned to headquarters company for five months
near Tam Quan. He noted participating in mine sweeping and
search and destroy missions. He noted that he was in a
number of situations where he was a target of sniper fire.
He denied directly witnessing any type of severe combat
action. He noted that a close friend drove over a landmine
and had his foot blown off. He noted that he came close to
being killed a number of times by sniper fire. He noted
witnessing seriously wounded individuals one week after TET.
The tarmac was filled with American GI bodies stacked in
metal containers. He noted seeing blownup body parts in
areas where he was mine sweeping. Chronic PTSD was
diagnosed. The examining VA psychiatrist indicated that if
the stressor is verified it is very clear this man has PTSD.
VA mental health records show the veteran was diagnosed with
PTSD in February 1999 and March 1999.
In April 1999, the veteran and his former wife attended a
hearing before a hearing officer at the RO. The hearing
transcript is on file. The veteran related several stressful
events during his active duty in Vietnam.
Also of record are a statement from the veteran's brother
referring to the veteran's outgoing nature prior to Vietnam
and the manifestations of PTSD following service in Vietnam.
Also of record is a medical article on PTSD.
In a January 2001 statement the veteran noted that in Vietnam
he was assigned to Company D 19th Engineer Battalion and
attached to the First Air Cavalry. He participated in search
and destroy missions. .
Information dated in December 2003 from the United States
Armed Services Center for the Research of Unit Records
(USASCRUR), received in response to the RO's request for
verification of the veteran's claimed stressors in Vietnam
show that operational reports from the 19th Engineer
Battalion for the periods ending April 30, 1969 and July 31,
1969, documented the unit's mission and significant
activities.
In pertinent part it was noted that during the reported
periods, the unit continued the primary mission of upgrading
landing zones and highways and provided combat and
operational support for other units within the area of
operations. The reports documented that the unit conducted
mine sweeps as stated by the veteran. The records verified
mortar, rocket, sniper and automatic weapons fire and mining
incidents which resulted in unit casualties. Also, it was
noted that the operational records documented attacks on Qui
Nhon, the main base location of the 19th Engineer Battalion
during the veteran's tour in Vietnam. The attacks occurred
on February 23, 1969, March 10, 1969 and March 23, 1969,
resulting in US casualties.
A December 2003 VA psychiatric examination report undertaken
by a VA psychologist notes that the veteran reported serving
in Vietnam from 1968 to 1969. He served in a combat engineer
unit and his duties included mine sweeping operations. The
examiner stated the veteran reported that he was never in a
position in which he came directly under fire from rocket or
mortar attacks. His unit might be ordered to fire and he
would start shooting and hope to hit something. The VA
psychologist noted the veteran experienced significant
symptoms of PTSD and listed the diagnoses of PTSD in the
Diagnostic Status. The examiner noted that the veteran's
PTSD did not appear to relate to conceded stressors.
In a March 2004 statement the veteran noted that the VA
psychologist's information regarding his history of Vietnam
stressors was inaccurate. The veteran stated that he was at
Headquarters Company at Tam Quohn during mortar attacks. He
was afraid of a direct hit. He was fearful of losing his
life. Also, he was subject to sniper fire at times. He
helped with security to keep the "VC" from stealing M-60
machine guns. He noted that when he was on mine seeping
duties he was in fear of losing his life.
Criteria
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of preexisting injury
suffered or disease contracted in the line of duty. 38
U.S.C.A. 1110 (West 2002).
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. 3.303(d) (2003).
The United States Court of Appeals for Veterans Claims (CAVC)
has held that, in order to prevail on the issue of service
connection, there must be medical evidence of a (1) current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
Establishing service connection for PTSD requires (1) a
current medical diagnosis of PTSD; (2) credible supporting
evidence that the claimed in-service stressor actually
occurred; and (3) medical evidence of a causal nexus between
current symptomatology and the specific claimed in-service
stressor. See 38 C.F.R. § 3.304(f); Anglin v. West, 11 Vet.
App. 361, 367 (1998); Gaines v. West, 11 Vet. App. 353, 357
(1998), Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Suozzi
v. Brown, 10 Vet. App. 307 (1997).
The diagnosis of PTSD must comply with the criteria set forth
in the Diagnostic and Statistical Manual of Mental Disorders,
4th Edition, of the American Psychiatric Association (DSM-
IV). See generally Cohen v. Brown, supra; 38 C.F.R. § 4.125
(2002).
The evidence required to support the occurrence of an in-
service stressor varies "depending on whether or not the
veteran was 'engaged in combat with the enemy'. . . . Where .
. . VA determines that the veteran did not engage in combat
with the enemy . . . the veteran's lay testimony, by itself,
will not be enough to establish the occurrence of the alleged
stressor." See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).
The requisite additional evidence may be obtained from
sources other than the veteran's service medical records.
See Moreau v. Brown, 9 Vet. App. 389, 395 (1996), aff'd, 124
F.3d 228 (Fed. Cir. 1997) (table); see also Dizoglio v.
Brown, 9 Vet. App. 163, 166 (1996); Doran v. Brown, 6 Vet.
App. 283 (1994); Zarycki v. Brown, 6 Vet. App. at 98.
Prior to March 7, 1997, governing regulations provided that
service connection for PTSD required medical evidence
establishing a clear diagnosis of the condition, credible
supporting evidence that the claimed in-service stressor
actually occurred, and a link, established by medical
evidence, between current symptomatology and the claimed in-
service stressor. If the claimed stressor was related to
combat, service department evidence that the veteran engaged
in combat or that the veteran was awarded the Purple Heart,
Combat Infantryman Badge, or similar combat citation would be
accepted, in the absence of evidence to the contrary, as
conclusive evidence of the claimed inservice stressor. 38
U.S.C.A. § 1154(b) (West 2002);
38 C.F.R. § 3.304(f).
However, on June 18, 1999, and retroactive to March 7, 1997,
that regulation was amended to read as follows:
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with § 4.125(a) of
this chapter; a link, established by medical evidence,
between current symptoms and an in-service stressor; and
credible supporting evidence that the claimed in-service
stressor occurred.
If the evidence establishes that the veteran engaged in
combat with the enemy and the claimed stressor is related to
that combat, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor.
If the evidence establishes that the veteran was a prisoner-
of-war under the provisions of § 3.1(y) of this part and the
claimed stressor is related to that prisoner-of-war
experience, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions and hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in- service
stressor.
64 Fed. Reg. 32,807 (June 18, 1999), now codified at 38
C.F.R. § 3.304(f) (2003) (effective March 7, 1997). That
amendment implemented the Cohen decision, which that had held
that 38 C.F.R. § 3.304(f) did not adequately reflect the law
of the governing statute, 38 U.S.C.A. § 1154(b). The
effective date of the amendment was March 7, 1997, the date
the Cohen decision was issued by the CAVC.
When, after consideration of all the evidence and material of
record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the veteran. 38
C.F.R. §§ 3.102, 4.3 (2003).
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. Where there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107
(West 2002).
Analysis
Preliminary Matter: Duties to Notify & to Assist
The Board initially notes that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000). Among other things, this law
eliminates the concept of a well-grounded claim, redefines
the obligations of VA with respect to the duty to assist, and
supersedes the decision of the CAVC in Morton v. West , 12
Vet. App. 477 (1999)withdrawn sub nom. Morton v. Gober, 14
Vet. App. 174 (2000) (per curiam order), which had held that
VA cannot assist in the development of a claim that is not
well grounded.
On August 29, 2001, the final regulations implementing the
VCAA were published in the Federal Register. The portion of
these regulations pertaining to the duty to notify and the
duty to assist are also effective as of the date of the
enactment of the VCAA, November 9, 2000. 66 Fed. Reg.
45,620, 45,630-45,632 (August 29, 2001) (codified as
38 C.F.R. § 3.159).
The Board is of the opinion that due to the favorable
disposition of the issue on appeal, that any VCAA notice
deficiency represents nothing more than harmless error.
Bernard v. Brown, 4 Vet. App. 384, 393-394 (1993).
Accordingly, there is no prejudice to the veteran in
proceeding with this case at this time.
Service Connection
The record contains medical evidence showing that the veteran
has been diagnosed with PTSD, essentially based on his
exposure to rocket, mortar and sniper fire as well as
participating in land mine sweeping operations while working
as a combat engineer in Vietnam. He was noted to have first
complained of nervous trouble on his examination for
separation from active duty.
Service connection for PTSD requires a link between current
symptoms and an in-service stressor and credible supporting
evidence that the claimed in-service stressor occurred. The
veteran's statements are not sufficient by themselves to
establish that a claimed stressor occurred.
Importantly, the Board notes that a VA psychiatrist in
February 1998 stated that the veteran definitely suffered
from chronic PTSD. The VA psychiatrist at that time
indicated that if a reported stressor is verified, it is very
clear the veteran has PTSD.
Significantly, the Board recognizes that the veteran's unit
histories documented and verified that his organizational
unit was exposed to significant enemy mortar and sniper fire
in a combat zone while he was in Vietnam, although his
individual participation in combat activities was not
specifically documented.
In regard to the verification of PTSD stressors, the CAVC has
recently held that the fact that a veteran was stationed with
a unit that was present while attacks occurred would strongly
suggest that he was, in fact, exposed to the attacks.
In other words, the veteran's presence with the unit at the
time such attacks occurred corroborates his statement that he
experienced such attacks personally. See Pentecost v.
Principi, 16 Vet. App. 124 (2002).
Importantly, the CAVC has also held that although a noncombat
veteran's testimony alone is insufficient proof of a
stressor, there need not be corroboration of every detail.
See Moreau v. Brown, 9 Vet. App. 389, 396 (1996); Suozzi v.
Brown, 10 Vet. App. 307, 311 (1997).
In the present case, there is independent evidence, as noted
by the veteran's unit activity, of exposure to combat action
in Vietnam by the veteran's unit during his presence in the
area.
In light of all of the foregoing evidence, the Board is
compelled to conclude that the veteran's alleged in-service
stressors have been sufficiently verified with independent
evidence. The Board emphasizes that there need not be
corroboration of every detail. See Moreau, supra.
The medical evidence demonstrates a diagnosis of PTSD related
to traumatic experiences during the veteran's Vietnam tour,
and such experiences have been sufficiently and independently
verified.
A longitudinal review of the evidence does not permit the
Board to conclude that the preponderance of the evidence is
against the veteran on the issue entitlement to service
connection for PTSD. Considerable weight has been accorded
the opinion of the VA psychiatrist on February 1998 and
sufficient verification of the veteran's Vietnam stressors.
Having found sufficient evidence in the record to satisfy the
requirements of
38 C.F.R. § 3.304(f), the Board finds that the evidentiary
record support a grant of entitlement to service connection
for PTSD.
ORDER
Entitlement to service connection for PTSD is granted.
____________________________________________
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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